Month: December 2015

On 4 November 2015, it was reported that Italian businessman, and owner of the League Two football club, Leyton Orient, Francesco Becchetti, had been arrested in the United Kingdom, following an arrest warrant issued by the Albanian government. A report is here.

Allegations

Mr Becchetti, his mother, and two business associates are accused of fraud-related offences and money laundering, committed between January 2012 and October 2013, in relation to a failed hydroelectric scheme that allegedly cost the Albanian government tens of millions of euros in grants and unpaid taxes.

According to reports, a European Arrest Warrant (EAW) was issued by Albanian authorities in June 2015, seeking Mr Becchetti’s extradition. Learning of the existence of the EAW, Mr Becchetti subsequently notified the British authorities of his presence in London, according to a statement issued by the businessman.

Arrest and Appearance at Westminster Magistrates’ Court, 26 October 2015

On 26 October 2015, Mr Becchetti was arrested by appointment in London by officers from the Metropolitan Police Extradition Unit, in the UK.

He appeared before Westminster Magistrates’ Court the same day and was released on bail, subject to a security of £50,000 and a curfew between the hours of 11 pm to 5 am. Mr Becchetti was also required to surrender his passport to the police and is not allowed to leave the UK.

Mr Becchetti denies the charges, and has accused the Albanian government of making “baseless charges” against him. Mr Becchetti alleges that the assets of his companies in Albania have been seized and their bank accounts frozen, preventing him from paying staff at his television company, Agon TV.

Mr Becchetti was set to appear at Westminster Magistrates’ Court again, on 7 December 2015, at a procedural hearing that was to consider the extradition request. To date, there are no public reports on this hearing. A substantive hearing is expected in 2016.

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On 27 October 2015, the Director of the Serious Fraud Office (SFO), in the United Kingdom, David Green QC, confirmed that his agency is looking into potential money laundering offences in the United Kingdom, in relation to the FIFA corruption investigation.

However, the SFO has not opened a criminal investigation into the matter, to date, for a number of reasons, including a refusal by Swiss authorities to hand over evidence, and a reluctance to interfere with the work carried out by US investigators. Reports are here and here (paywall).

SFO Investigation

On 27 October 2015, Mr Green QC confirmed that the agency is considering potential money laundering offences in the UK in connection with the FIFA corruption scandal. Appearing before the Culture, Media and Sports Select Committee, Mr Green stated:

“We are still examining issues around possible money laundering…There are several aspects to it and some new information has come to us quite recently.”

Focusing on a single payment of approximately £301,000, made to the FIFA Vice President, Jack Warner, from the Australia 2022 bid committee, which may have been routed through London, Mr Warner stated: “I cannot confirm the assertion that money went through London – it certainly started off in Sydney and appears to have ended up in Trinidad… It could be money-laundering, yes. Whether the money came through London is important.”

Mr Green QC added: “There are outstanding matters which touch upon money laundering. There are a number of matters we are still looking at and digging into.”

In the course of the questioning, Mr Green QC further revealed:

A request to Swiss prosecutors to disclose the report by Michael Garcia on the 2018 and 2022 World Cup bidding process (which was never published in full) was rejected.

A request to the US Department of Justice to analyse the tapes from undercover meetings between former FIFA Executive Committee member, Chuck Blazer, and other football officials during the 2012 Olympics had been rejected because it related to an ongoing investigation.

The Bribery Act 2010 “as things stand” is not available to the SFO to pursue proceedings against FIFA; therefore Swiss and US investigations should proceed unhindered.

Possible Extradition Consequences of a UK Investigation

Mr Warner is currently residing in Trinidad, and faces extradition to the US, after the Attorney General of Trinidad and Tobago, Faris Al Rawi, signed Authority to Proceed (‘ATP’) documents on 21 September 2015.

Were the SFO to uncover alleged wrongdoing by Mr Warner, it would remain open to prosecutors and the Home Office to decide whether to seek his extradition to the UK, to face possible charges in this country.

This development highlights the increasingly complex mosaic of extradition requests for those footballing officials embroiled in the FIFA scandal, who are wanted to face corruption allegations in the US, and in other jurisdictions across the world.

The Swiss Federal Office of Justice (FOJ) has already faced the situation where it has had to prioritise multiple extradition requests, in the case of Julio Rocha (for a summary, see the end section of this blog).

In summary, in that case, the Swiss FOJ held that requests for extradition from the US and Nicaragua, respectively, would both be approved. However, the FOJ gave priority to the US extradition request, noting that – although the offences listed in both requests were broadly the same – US authorities had been conducting a more wide-ranging criminal investigation than in Nicaragua and a number of individuals had already been extradited to the US. Further, most of the evidence and witnesses are also located in the US.

Between some countries, the rules and principles concerning multiple extradition requests are set out in bilateral treaties, which prescribe those factors that are to be taken into account. Indeed, with respect to Mr Warner, Article 12 of the Extradition Treaty between the US and Trinidad and Tobago states:

“If the Requested State receives from the other Contracting State and from any other State or States for the extradition of the same person, either for the same offence or for different offences, the executive authority of the Requested State shall determine to which State it will surrender the person. In making its decision, the Requested State shall consider all relevant factors, including but not limited to:

(a) whether the requests were made pursuant to treaty;

(b) the place where each offence was committed;

(c) the respective interests of the Requesting States;

(d) the gravity of the offences;

(e) the nationality of the victim;

(f) the possibility of further extradition between the Requesting States; and

(g) the chronological order in which the requests were received from the Requesting States.”

A similar provision can be found in Article 15 of the 2003 Extradition Treaty, in force between the UK and the US.

Whether regard is had to the provision in the Treaty between the US and Trinidad and Tobago depends, of course, on what progress is made in extradition proceedings against Mr Warner in Trinidad, and whether the authorities make an outgoing request for his extradition, to either Trinidad or the US, to face allegations in the UK.

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On 3 November 2015, José Maria Marin, former President of the Brazilian Football Confederation, was extradited to the United States, from Switzerland.

This followed reports on 28 October 2015 that Mr Marin had agreed to be extradited back to the United States from Switzerland, enabling the Swiss Federal Office of Justice (FOJ) to immediately approve Mr Marin’s extradition in simplified proceedings.

The FOJ press report is here. A report on Mr Marin’s extradition is here.

Allegations

Mr Marin is accused of having taken bribes worth millions of dollars from sports marketing companies in connection with the sale of marketing rights for the Copa America tournaments for 2015, 2016, 2019 and 2023, and the Copa do Brasil for the period from 2013 to 2022.

Mr Marin is alleged to have shared these bribes with other soccer officials, as a consequence of which funds were diverted from two of FIFA’s continental confederations, as well as from the national football association of Brazil. Mr Marin denies the allegations.

Arrest

Mr Marin was arrested in Zurich, Switzerland, along with six other officials on 27 May 2015, on the basis of an arrest request from the US. He was then held in custody pending extradition.

The formal US extradition request, which was submitted to the FOJ on 1 July 2015, is based on an arrest warrant issued on 20 May 2015 by the US Attorney’s Office for the Eastern District of New York.

Simplified Extradition Proceedings

Mr Marin had previously opposed extradition to the US. However, at a hearing on 27 October 2015, Mr Marin agreed to his extradition, enabling the FOJ to immediately approve his extradition in simplified proceedings.

Under the Swiss Federal Act on International Mutual Assistances in Criminal Matters, Mr Marin was required to be placed in the custody of a US police escort and transferred to the US within ten days.

An instructive flowchart, setting out the difference between simplified and ordinary extradition proceedings in Switzerland, can be found at page 7 of the following Swiss FOJ document, here.

Extradition, 3 November 2015

On 3 November 2015, Mr Marin was extradited to the US. After his extradition, he appeared in federal court in Brooklyn, New York, where he pleaded not guilty to US bribery charges.

Mr Marin was released on a $15m bond, signed by his wife, on the condition that he lives under tight restrictions in a New York apartment until his case is resolved. His lawyer said that his client was “preparing to deal with the charges”.

Mr Marin is the second individual embroiled in the scandal to agree to be extradited to the US, after former FIFA Vice President, Jeffrey Webb, who was handed over to authorities on 15 July 2015. Five other FIFA officials arrested in Zurich in May 2015 continue to oppose their extradition. Previous FIFA blogs are here.

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On 29 October 2015, Members of the European Parliament (MEPs), during a plenary session of the European Parliament, voted 285 to 281 in favour of a (non-binding) resolution that Edward Snowden, the National Security Agency (NSA) whistleblower, should be allowed to seek asylum in the European Union. The press release is here.

Background

In a high profile move, Edward Snowden, in his capacity as a former government contractor, leaked classified information from the United States National Security Agency (NSA) in 2013. On 23 May 2013, Mr Snowden, a US national, fled from the US, to Hong Kong, in China.

On 23 June 2013, the Hong Kong government refused to extradite Mr Snowden, to the US, citing non-compliance by the US government in legal documents provided for the issue of provisional arrest warrant of arrest against him. It was reported that, on the same day, Mr Snowden left Hong Kong for Moscow, Russia, where he has been granted a residence permit until 1 August 2017.

In 2014, Mr Snowden requested various Scandinavian countries to grant him asylum. According to reports, the US Federal Bureau of Investigation (FBI) responded by writing to the police forces of Denmark, Norway, Sweden and Finland to inform them that the US Department of Justice had charged Mr Snowden with theft and espionage, and had issued a provisional warrant for his arrest, with a view to seeking his extradition.

In a separate letter to the Norwegian foreign ministry, the US Embassy in Oslo spelled out its request that the government of Norway should “effectuate the return of Mr Snowden to the United States by way of denial of entry, deportation, expulsion or other legal means”, and wrote again, subsequently, to repeat its request that Mr Snowden be arrested and extradited to the US under the 1977 extradition treaty between the two countries. A report is here.

Mr Snowden was not granted asylum, and remains in Moscow.

European Parliament Resolution, 29 October 2015

By 285 votes to 281, MEPs decided to call on EU member states to “drop any criminal charges against Mr Snowden, grant him protection and consequently prevent extradition or rendition by third parties, in recognition of his status as whistle-blower and international human rights defender”.

Additionally, in major developments in the field of European surveillance law, MEPs:

Passed a resolution by 342 votes to 274, with 29 abstentions, urging the EU Commission to ensure that all data transfers to the US are subject to an “effective level of protection”. According to the press release, this is to account for the lack of: “action taken by the European Commission, other EU institutions and member states on the recommendations set out by Parliament in its resolution of 12 March 2014 on the electronic mass surveillance of EU citizens”.

Welcomed the 6 October 2015 ruling by the EU Court of Justice (ECJ) in the Max Schrems case, which invalidated the Commission’s decision on the Safe Harbour scheme for data transfers to the US. “This ruling has confirmed the long-standing position of Parliament regarding the lack of an adequate level of protection under this instrument,” the ECJ held.

Expressed concern about “recent laws in some member states that extend surveillance capabilities of intelligence bodies”, including in France, the UK and the Netherlands.

Effect of Snowden Resolution and Response

The Snowden resolution is largely symbolic in effect. The European Parliament, which is a directly-elected legislature, with members from all 28 EU member states, has a limited legislative authority. In essence, the resolution amounts to a request that member states reject attempts by the US to arrest and prosecute Mr Snowden.

On Twitter, Mr Snowden said that the vote was a “game-changer”, adding that, “This is not a blow against the US Government, but an open hand extended by friends. It is a chance to move forward.”

A spokesperson for the National Security Counsel, in the US, speaking to the Guardian, stated that: “Our position has not changed. Mr Snowden is accused of leaking classified information and faces felony charges here in the United States. As such, he should be returned to the US as soon as possible, where he will be accorded full due process.”

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On 30 October 2015, the Kraków District Court, in Poland, rejected an application by authorities in the United States for the extradition of the filmmaker, Roman Polanski, in connection with a sexual assault on a 13-year-old girl in 1977. A report is here. A previous blog on the Polanski case is here.

Judgment, 30 October 2015

Judge Dariusz Mazur, sitting at the Kraków District Court, held that extradition of Mr Polanski would be an “obviously unlawful” deprivation of his liberty and that California would be unlikely to provide humane living conditions for the filmmaker, who is 82-years-old.

“The court’s assessment is that it would be clearly connected with unlawful deprivation of freedom, taking into account time needed to transfer the extradited person to United States, which is probably several months, at least several weeks, possibly in difficult and unsuitable conditions for an elderly person,” Judge Mazur ruled.

Judge Mazur said that while Mr. Polanski’s guilt was beyond doubt, the filmmaker was now leading “a normal life” with wife and children, and that his victim had forgiven him. He added that Mr Polanski’s right to a fair trial and right of defence had been “grossly and repeatedly violated” over the years by several US judges and prosecutors.

Reaction and Next Steps

Mr Polanski was not present in court to hear the decision, however, after the ruling he stated that he was “very happy” at the outcome. He praised the judge as “incredibly well-informed,” adding, “Frankly, I was moved.”

At a press conference, in response to a question of whether he thought that his battle to avoid extradition was over, Mr Polanski added: “I don’t know. I am tired. It takes so much time. I have lost so much time. At my age, a year is a long time.”

The complainant in Mr Polanski’s case, Samantha Geimer, has expressed support for the ruling. In an interview with NBC news, she stated, “I believe they did the right thing and made the right decision given all the facts”. “Since I’m well aware of how long this has been going on, I’m very pleased and happy,” she added.

The case was open to appeal, within a seven day deadline. “We will wait until we get the full decision in writing before deciding whether to appeal,” the regional prosecutor stated after the ruling. However, on 20 November 2015, Polish prosecutors announced that they would not be challenging the decision.